A Federal District Court has ruled that recordkeepers may use participant data to cross-sell retail products. 

The class action suit (Harman et al vs. Shell oil Company et al) was filed in January 2020 on behalf of participants in the Shell Provident Fund 401(k) Plan.  Fidelity is the recordkeeper for the plan and was named a defendant on the grounds that it allegedly engaged in prohibited transactions under ERISA by using participant data to cross-sell retail products.  The cross-selling practices Fidelity is alleged to have engaged in are typical of many large recordkeepers, and include cross-selling brokerage and advisory services, insurance, credit cards, and other banking services. 

Fidelity argued that it is not a plan fiduciary and did not engage in prohibited transactions through its use of participant data because contrary to the allegations of the plaintiffs, such data is not a plan asset.  The judge examined the DOL regulations defining what constitutes a plan asset and agreed with Fidelity, granting their motion to dismiss them as a defendant.